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Jurisdictional struggle between EPA and state regarding “watershed assessment” in Southcentral Alaska

The federal Environmental Protection Agency is contending with the State of Alaska regarding the legal basis of an ongoing “watershed assessment” of the Bristol Bay area in Alaska. According to the EPA, this assessment was launched in reaction to petitions filed by various groups asking EPA to halt the Pebble mining project. Pebble is a gold, copper and molybdenum prospect located about 150 miles southwest of Anchorage, in an area that drains into Bristol Bay. Bristol Bay is home to Alaska’s largest salmon fishery.

On March 9, Alaska Attorney General Michael Geraghty sent a letter to EPA Region 10 administrator Dennis McLerran complaining about the assessment, and asserting that it is not authorized by the Clean Water Act. The letter noted that nothing in the Clean Water Act or its associated regulations authorizes action in response to a petition of the sort that the EPA had received, and there was no permit application and no proposed regulatory activity. The letter expressed apprehension regarding the impact of the assessment on Alaska’s mineral rights under its Statehood Compact, and raised a number of other objections regarding the legal basis for the assessment as well as how it is being conducted. The Pebble prospect is located on state lands, and has as yet not submitted any permit applications for its mining project.

McLerran’s April 5 response defending the authority of EPA to conduct the assessment stated “The EPA is performing the Watershed Assessment under our CWA Section 104 authorities that direct the Administrator to ‘establish national programs for the prevention, reduction and elimination of pollution,’ and as part of the program will ‘ … conduct and promote the coordination and acceleration of research, investigations … and studies relating to the causes, effects, extent, prevention, reduction and elimination of pollution ….’ according to 33 U.S.C. § 1254 (a)(1). In carrying out these actions, the EPA Administrator is also authorized to ‘collect and make available through publications and other appropriate means, the results of and other information, including appropriate recommendations by [her]in connection therewith, pertaining to such research and other activities …’ according to 33 U.S.C. §1254 (b)(1).”

The last shot in this controversy (so far) was fired by Geraghty on April 17. His letter to McLerran cited authority that, he asserted, undermined McLerran’s claims that the assessment was allowed under the Clean Water Act. Geraghty demanded that the assessment be halted. The EPA apparently plans to issue the assessment in mid-May.